By Sri. MOHANDASAN.K, PRESIDENT
1.The complaint in short is as follows: -
The complainant residing at Pothukkal Panchayath in 11th ward and his House No. is 149. During the year 2019 there was flood calamity and his house was immersed in flood, as a result there was considerable damage to his house. During that period the house was not insured. So the complainant maintained all the defects at his own expense. Subsequent to that an insurance agent residing near to his house called Rajani came to him and informed him that, if the house of the complainant is insured the cost for repairing the house during this sort of calamity will be met by the Insurance company. As per her persuasion he subscribed policy No. 3007031120P102087375 and the validity period of the insurance coverage was from 05/06/2020 to 04/06 2021. The concerned officials of the Insurance Company came to the residence of the complainant and ensured that there were no defects to the house of the complainant and thereafter issued the insurance policy. As per the insurance policy, the house was insured for Rs. 50,00,000/-and electrical fittings insured for Rs.34,00,000/- i.e, altogether the insured amount was Rs. 84,00,000/-.The complainant paid Rs. 5911/- as insurance premium.
2. The sit out of the complainant house was laid with Marble. During the 2020 rainy season he could see a crack over the marble and later the end of the month it was gradually developed up to the door side. The complainant informed Mr.Nizamudheen, who is working as a building supervisor and he said that it is happened due to heavy raining. On 25/09/2020 a written complaint presented before the opposite party and as per the instruction of the opposite party one insurance surveyor called Mr.Rohit came to the spot and verified the complaint. The complainant submitted claim form along with estimate prepared by the Nizamudheen. But thereafter five months the complainant received letter from the opposite party repudiating the claim. The complainant had not served the terms and conditions by the opposite party and so the reasons stated for denial of insurance, the complainant could not understand. The complainant firmly believes that he is entitled for the insurance benefit. Mr. Nizhamudheen prepared the estimate suggesting reconstruction of foundation of sit out and the approximate estimate for the same as Rs.2,79,180/-. Then the complainant said to Mr.Nizamudheen that they are residing in the house and so the work suggested by Mr.Nizamudheen will cause much inconvenience to the family and requested him to prepare an estimate only to replace the Marble. Mr.Nizamudheen prepared an estimate for Rs.40,000/- accordingly. During that time the complainant received repudiation letter from the opposite parties. So, the complainant alleges deficiency in service and unfair trade practice on the side of opposite party. The opposite party repudiated the claim of the complainant after expiry of 5 months. The complainant being sixty five-year-old man was dragged to the opposite party several occasions. Hence the prayer of the complainant is to direct opposite party to allow Rs. 40,000/- for maintenance of the defective marbles and also directed to pay Rs. 50,000/- as compensation on account of deficiency in service and thereby caused inconvenience and hardship to the complainant. The complainant also prays Rs. 30,000/-as cost.
3. On admission of the complaint notice was issued to the opposite party and the opposite party entered appearance and filed version.
4. The opposite party denied the entire allegations in the complaint and prayed for the dismissal of the complaint with cost.
5. The complainant had taken a standard fire and special perils insurance policy from the opposite party as policy No. 3007031120P102087375 insuring his house and allied amenities for a total amount of Rs. 84,00,000/-. The yearly premium was Rs. 5911/- including GST. The period of insurance was from 05/06/2020 to 04/06/2021. The opposite party submitted that the policy is standard fire and special perils policy and rain will not come under the eleven perils listed in the policy. The complainant had submitted in the complaint that crack on the front sit out marble was caused due to heavy rain during the year 2019. The policy holder has full knowledge of this particular policy. The averment of the complainant that full disclosure of the policy details to him was not done is not correct and so the opposite party denied.
6. The policy issued to the complainant is called standard fire and special perils policy which consisting of 11 named perils coverage, as described in the policy. The damage occurred to the building of the complainant is not due to the effect of any of the eleven perils mentioned in the policy. The opposite party contended that the claim of the complainant was not informed in time by the complainant and so the complaint is liable to be dismissed on the ground alone. The complainant is bound to prefer the complaint within 15 days of the incidence and the complainant has not done it. The opposite party submitted that when the complainant filed complaint, the company forwarded the same to the insurance surveyor and civil engineer and called for the report. The report clearly stated that neither flood nor inundation has affected the insured property or nearby areas in the year 2020, though there was heavy rain. It is also reported that there was no settlement of foundation, if there was settlement of foundation it will be reflected on the foundation, top and bottom end of pillars and crack on the wall. The opposite party submit that as per the report no such evidence of settlement or movement or made up ground or crack was there which was also agreed by the insured. The building supervisor Mr.Nizamudheen was appointed by complainant himself and his report or suggestion were not bound by the opposite party. The opposite party did not delay to repudiate the claim of the complainant. But taken only reasonable time only to enquire about the complainant’s claim. The opposite party submitted that they had issued the policy condition and the complainant had verified and accepted the policy conditions and remitted the required policy premium. The first opposite party has issued the policy certificate thereafter. The submission of the opposite party is that the complaint is filed on experimental basis and liable to be dismissed in limine. The opposite party also submitted that if any dispute or difference arises as to the quantum to be paid under the policy such differences shall independently of all other persons to be referred to the decision of the arbitrator to be appointed in writing by the parties. Hence the submission of the opposite party is that the Commission have no power to adjudicate but to be adjudicated by the arbitrator. Hence the contention of the opposite party is that the complaint is not maintainable since there is arbitration Clause in the policy certificate. The opposite party submitted that there is no deficiency of service as contemplated in the Consumer Protection Act and so the complaint deserves dismissal with cost of the opposite party.
7. The complainant and opposite party filed affidavit and documents. The documents on the side of complainant marked as Ext. A1 to A5. The documents on the side of opposite party marked as documents Ext. B1 to B5. Ext. A1 is copy of photographs to show the crack of Marble, Ext. A2 is detailed calamity estimate prepared by Mr.Nizhamudheen.E , Ext. A3 is copy of letter of repudiation issued by the opposite party to the complainant dated 15/02/2021, Ext. A4 is copy of standard fire and special perils policy, Ext. A5 is an inspection report issued by Mr.Nizamudheen.E dated 10/09/2020. Ext.B1 is report issued by Mr. John Joseph to the opposite party dated 10/01/2021.Ext.B2 is Policy copy issued to the complainant , Ext.B3 is copy of complaint filed the complainant before the opposite party, Ext. B4 is copy of fire insurance claim form, Ext.B5 is copy of private and confidential fire(final) survey report prepared by Mr.Rohit Raghunath, B -Tech.
8. Heard complainant and opposite party, perused affidavit and documents. The following points arise for consideration.
- Whether the damage caused to the front sit out marble of the complainant house was during the validity period of the policy?
- Whether there was deficiency in-service on the part of the opposite party?
- Relief and cost.
9. Point No.1 & 2
The complainant submitted that his house was sustained certain damage during the flood season of 2019. But at that time there was no insurance coverage for the house of the complainant and so the complainant rectified all the damage at his own expenses. Thereafter an insurance agent residing near to the complainant’s house approached the complainant and induced to avail an insurance policy to meet the situation which he faced during 2019 flood season. So, the complainant availed the insurance policy and the policy period was 05/06/2020 to 04/06/2021.The complainant specifically submitted that the policy issued to the complainant by the opposite party was after physical verification of the house of the complainant and ensuring there was no damage to the house and finding that the house is one insurable. The policy was for Rs. 84,00,000/-. During 2020 rainy season, it was noted a crack on front sit out marble and gradually it was developed up to the main front door. The complainant contacted one Nizamudheen , who is a building supervisor available in the locality and he examined the complaint and said that the crack occurred due to heavy rain and the same has been affected foundation of the sit out. So the complainant submitted a complaint before the opposite party on 30/09/2020 which is evident from Ext.B3. The Supervisor Mr.Nizamudheen issued a detailed calamity estimate in respect of the residential building of the complainant as per Ext. A2. The same local supervisor visited the house of the complainant on 10/09/2020 and reported that at the time of his inspection there was crack on the wall as stated in the complaint.
10. The opposite party produced Ext. B1 which shows that while he inspected the house on 10/01/2021, he could not see any sign of settlement or cracks on the building and accessory building. He has stated that there is a crack found in the front sit out from the steps to the front door. According to him it may be due to the settlement of basement earth filling and also due to the flood in 2019 or bad compaction of earth filling later on in the year. The case of the complaint is that there was crack on the front sit out marble from the steps to the main front door. The document Ext.B1 also state that there is crack found in the front sit out from the steps to the front door. But Ext. B1 is not stated the reason for crack. The contention in Ext. B1 is the reason may be due to the settlement of basement earth filling and also due to the flood season in 2019. The complainant has stated that the opposite party issued insurance certificate to the complainant on physical verification of the building by the officials of opposite party. There is no document or record on the side of opposite party to establish there was crack in the front sit out at the time of issuing the insurance policy. Ext.A1 photographs also establish there was crack on the wall as alleged. From the averments and documents, it can be seen that there was crack on the front sit out as alleged by the complainant and that was during the period of insurance policy, since the opposite party could not establish that there was crack in the front sit out marble of the complainant prior to the issuance of policy. It is also to be noted that the complainant approached the opposite party on 30/09/2020.The submission of the complaint is that the crack to the Marble was noted during the month of August, but it was developed later at the end of September. So the contention of the opposite party that the claim was submitted very later is not sustainable.
11. The submission of the complainant is that as per the estimate prepared by the Nizamudheen to rebuild the foundation of the sit out, it will worth Rs. 2,79,180/-.But the entire family of the complainant being residing in the house, it will cause much in convenience to the complainant and it was suggested only to replace the defective marble and so a fresh estimate was requested to prepare by Mr.Nizamudheen. As per his estimate for removing the defective marbles and replacing the same, he assessed Rs.40,000/-. The opposite party submitted that, they are not liable to provide estimate amount prepared by building supervisor Mr.Nizamudheen who is appointed by the complainant himself. The opposite party produced Ext.B5 documents private and confidential fire survey report. As per his report, he assessed Rs. 17,849/- for dismantling old marble slab and flooring with new slab including polishing. The perusal of documents Ext. A2 and B5 it can be seen that Ext. A2 is more descriptive than Ext.B5. Hence, we accept Ext. A2 as the document for assessing the expense for repairing the damage sustained to the house of the complainant.
12. The opposite party also has got a contention that as per standard fire and special peril policy 11 named perils does not include the cause for damage to the residential building of the complainant. But the document Ext. B2, Clause 6 describe perils as follows:- storm, cyclone , Typhoon, Inundation : Loss, destruction or damage directly caused by storm , cyclone, Typhoon Tempest, Hurricane , Tornado , Flood or inundation excluding those resulting from earthquake Volcanic eruption or other convulsions of nature (Wherever earthquake cover is given as an “add on cover” the words “ excluding those resulting from earth quake volcanic eruption or other convulsion nature “. Shall stand deleted. So, the contention of the opposite party is baseless since flood is included in the list of perils as per the policy. The damage caused to the house of the complainant was due to heavy rainfall which led to the flood. So, the commission is of the view that there was damage to the marble on the front sit out of the complainant during the flood of season 2020 while the insurance policy was in force and the repair cost may come up to Rs. 40,000/- as per Ext. A2.
13. The complainant approached the opposite party on 30/09/2020 which is within the reasonable time of incident but the opposite party repudiated the claim after a long period on 15/02/2021. Hence, we find that there is deficiency in service on the side of the opposite party.
14. Considering the entire documents and facts we allow this complaint as follows: -
- The opposite party is directed to pay Rs. 40,000/-(Rupees Forty thousand only) to the complainant towards the repair cost of the front sit out damaged marble.
- The opposite party is directed to pay Rs.25,000/-(Rupees Twenty five thousand only) to the complainant on account of deficiency in-service and thereby caused inconvenience and hard ship to the complainant.
- The opposite party is also directed to pay Rs.10,000/-(Rupees Ten thousand only) the cost of the proceedings.
The opposite party is directed comply this order within one month from the date of receipt of copy of this order, failing which the compensation and cost will carry interest @9% per annum from the date of this order till realization.
Dated this 5thday of July, 2022.
